Prosecution lie could affect case

A criminal defendant in Maryland who has been convicted of certain crimes may attempt to obtain a new trial by arguing that evidence discovered since his trial “creates a substantial or significant possibility” that the outcome might have been different had the new evidence come to light. The procedure to raise such an issue, even years after a conviction, is by filing a Petition for Writ of Actual Innocence. What happens when the newly discovered evidence is that a prosecution expert witness lied was explored by Maryland’s highest Court in an opinion filed last week called Robert Anthony McGhie v. State of Maryland.

The Court’s majority opinion indicates that McGhie was charged as an accomplice in a failed robbery attempt at an establishment in Silver Spring. At trial, the State called witnesses who testified that the Defendant was involved in the planning of the robbery, and provided a vehicle that was used in the getaway. Two of his alleged accomplices entered the store, and one of them named Barrero shot and wounded the storekeeper, then shot and killed another man who entered during the robbery attempt. Barrero pled guilty to murder and testified to the Defendant’s involvement in the crimes. At trial, McGhie denied involvement and said his car had been stolen.

Among other witnesses, the prosecution called Joseph Kopera as a ballistics expert, who testified that a bullet and shell casings found at the scene matched those found at another shooting in which McGhie was involved. The jury convicted him. Years later, the prosecution advised the Defendant’s lawyers that in this case and others, Kopera lied about his qualifications, including falsely testifying to college degrees and complete of an FBI ballistics course that did not exist. McGhie’s lawyers filed a Petition raising this evidence, but the trial judge ruled he had not shown the necessary possibility that this evidence of false testimony would have changed the trial’s outcome.

The Court of Appeals upheld that decision. It noted not only the testimony of the shooter as to McGhie’s involvement, but other witnesses who testified to his involvement in planning of the robbery, that he asked another witness to drive by the scene and look at the investigation, and that McGhie and his accomplices produced the gun the day after the shooting. Even if the jury totally disregarded the ballistics testimony, the Court found that the evidence of guilt was so overwhelming that the requisite showing of a possible different outcome had not been made.

This illustrates that not even lies from an expert will necessarily give a convicted defendant a second chance at a new trial.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.